dissenting :
I concur in the order dismissing the proceedings for want of jurisdiction. I dissent from that portion of the prevailing opinion which tends to hold that the relator does not come within the inhibition of section 8, art. 4, of the constitution of this state. The section of the constitution above referred to is as follows:
"No senator or member of-assembly shall, during the term for which he shall have been elected, nor for one year thereafter, be appointed to any civil office of profit under this state which shall have been created, or the emoluments of which shall have been increased during such term, except such office as may be filled by elections by the people. ”
This constitutional provision did not originate with the framers of our organic law. It had been incorporated into the constitutions of many of the states of the Union admitted prior to 1864. It was then, and is now, to be found in the constitution of the State of New York, as well as in the constitution of the State of California — of which last-named state, thirty-eight out of the forty-six members composing our constitutional convention were former residents. It was from the organic acts of these two commonwealths that this, as well as many other of our *241constitutional provisions, was adopted. We are justified in assuming that the founders of our constitution, in adopting this specific provision from the constitutions of other states, did so not only in a spirit of approval of the provision, but especially in the light of such applications and constructions as had been given to it, or to the words contained in it, by the courts of the states from whence it 'was adopted. And where words or phrases, contained in the adopted provisions, have received judicial interpretation and definition by the parent state, the framers of the constitution of the adopting state are presumed to adopt and to intend to apply such definition or interpretation, where conditions make them applicable. When this constitutional provision was adopted, it is reasonable to suppose that it was adopted in the light of such expression, coming either from lexicographers or from j udicial declaration, as indicated the force and effect of each term therein used, as well as its scope and significance, in fits usual and ordinary acceptation by antecedent and contemporaneous authorities.
The Supreme Court of the State of California, at whose bar eleven members of our constitutional convention were practicing attorneys, had construed the word "office” in a decision rendered by Mr. Justice Terry, speaking for the court, in 1857, some eight years prior to the adoption of our constitution, and in that decision the term "officer,” in its common acceptation, was held to be sufficiently comprehensive to include all persons in any public situation or employment conferred by government. The court, in that instance, quoted from an old English lexicographer, as follows:
" Officers are public or private, and it is said every man is a public officer who hath any duty concerning the public, and he is not the less a public officer where his authority is confined to narrow limits, because it is the duty of his office and the nature of that duty which makes him a public officer, and not the extent of his authority. (Jacobs’s Law Dict. vol. 4, p. 438.) ” (Vaughn v. English, 8 Cal. 41.)
Burrill’s Law Dictionary, a standard of authority at *242the time at which this provision was incorporated into the organic law of the several states, holds that an office is:
"A position or station in which a person is employed to perform certain duties, or by virtue of which he becomes charged with the performance of certain duties, public or private. ”
As to what was the common acceptation of the term " office” prior to and at the time of the adoption of this provision of our constitution may be ascertained from the case of People v. Hayes, et al., 7 How. Prac. (N. Y.) 248, in which the Supreme Court of New York approved the expression of Chancellor Sandford wherein he said:
" 'An office’ * * * is a public charge or employment, and the term seems to comprehend every charge or employment, in which the public are interested. * * * Every office is considered public, the duties of which concern the public. (5 Bac. Ab. 180; 2 Tom. Dic."Office”; People v. Bedell, 2 Hill, 199.)”
And in the same decision the court also approved of the expression:
" Every one who is appointed to discharge a public duty and receive compensation in whatever shape, whether from the crown or otherwise, is a public officer. ”
It makes little difference, in my judgment, as to what may be the varied interpretations and definitions that have been applied to the words or expression "civil office of profit” or the word "office” or "officer.” We may ring the changes on these words as we wish, the policy sought to be established by the framers of our organic law, when they incorporated into that law section 8 of article 4, remains the same; the protection sought to- be afforded remains the same; the inhibition sought to be established remains the same.
The words employed in section 8, article 4, of the constitution require no construction or interpretation. By the framers of the constitution, they were intended to carry and convey the general force and effect ordinarily given to them at that time. Read this section, and insert in place of the word "office” the definition *243given to that word by the courts of New York and California in the Hayes and Vaughn cases, supra, and it follows that it was the intention of the framers of our constitution to prohibit a senator or member of the assembly from being appointed to any position or employment of profit in which, or by virtue of which, he would become charged with the performance of any public duties, where such position or employment was created during his term as a senator or member of the assembly or for one year thereafter.
In reviewing the innumerable expressions rendered by the various courts from times of antiquity until the present day, tending to define the words "office” and "officer,” we may lose sight of the fundamental thing sought to be prohibited by the section of the constitution herein involved. We may dwell at length on the technical phases of the words " office” and " officer, ” but the more we attempt to become technical in this respect, the more we lose sight of that great, broad, wholesome policy, established by the framers of the organic law, by which incidents such as that presented in the case at bar were sought to be averted.
The seriousness with which the members of the constitutional convention regarded this provision may be gathered from the very brief but pointed discussion which took place at its adoption, and in this respect we find, on page 141 of Andrew J. Marsh’s official report of the Debates and Proceedings on the Adoption of the Constitution of Nevada, the following:
. "Section 8 was read, as follows: 'Sec. 8. No senator or member of assembly shall, during the term for which he shall have been elected, nor for one year thereafter, be appointed to any civil office of profit under this state which shall have been created, or the emoluments of which shall have been increased during such term, except such office as may be filled by elections by the people. ’
" Mr. Kennedy — I move to strike out the words,' nor for one year thereafter. ’
"Mr. Johnson — Now, Mr. Chairman, it must be apparent *244to the members of this committee what is the object of the incorporation of this provision. I think it is right as it is, and I hope those words will not be stricken out. It is to prevent the creation of offices which can be filled by those persons who themselves created them. Sometimes it may occur that a valuable and important office is proposed to be created by the legislature, and a combination can be made to secure the passage of the bill establishing such an office by the efforts of the expected incumbent. Under this provision, if the amendment be adopted, the incumbency might be so arranged as to expire within a short time, and then it would, of course, be necessary to supply the office. ”
It was "to prevent the creation of offices which could be filled by those persons who themselves created them” that the framers of the constitution adopted section 8, art. 4. They adopted this section in the identical language in which it occurred in the then existing constitution of the State of California; they adopted the words of this section, with their meaning and significance embracing such a scope as had been declared by judicial interpretation in the state from whence they were adopted, and with which interpretation at least eleven members of the convention, admitted practitioners at the bar of the Supreme Court of California, must have been familiar; and in this respect they had before them the case of Vaughn v. English, supra, already referred to, a decision which, by the way, has been referred to approvingly in nearly every decision that has been rendered since that time by the courts, in which the subject has been gone into at length. They, therefore, adopted this provision to prevent the creation by the legislature of public situations or employments which could be filled by those persons who themselves created them.
In the case at bar, dwell as we will upon the varied and various definitions to be given to the words "office” or " officer, ” we have a most striking presentation of the very thing which section 8, art. 4, of the constitution was incorporated in the organic law to prevent: ■ The petitioner, a member of the legislature; the legislature of *245which he is a member passes an act- providing for the creation of certain positions, and imposing a tax upon the people of the state and their property for the payment of the salaries of those who might thereafter be appointed to those positions. After the close of the legislature by which the act was passed, petitioner, still a member of that body which passed the act, is appointed to one of the positions which, by his vote, he created. When established policies, broad principles, and manifest purposes confront us, aimed at prohibiting conduct and conditions such as these, should we quibble over far-fetched or finespun definitions of simple words, to the end that these policies, principles, and purposes may be lost sight of, warped, or destroyed?
If petitioner can be relieved of the inhibition of section 8, art. 4, then every one of the members of the legislature of 1913 is free from the operation of that constitutional provision — free to hold and receive the emoluments of positions which they created,if, by either chance, accident, or design, the position was not specifically termed "office.”
If I grasp the significance of the prevailing and concurring opinions in this case, the only thing that will prevent a member of the legislature from occupying a position created by the session of which he is a member is that the position be by the act itself declared to be an "office. ”
However much we may feel ourselves bound by precedent established by other courts, however much the rule of stare decisis may be worthy of being followed, we should not be blinded by the labyrinth of technical definitions to such an extent as to lose sight of the aims and purposes and beneficial results sought to be brought about and accomplished by the policy established in the first instance by the organic law; and in the case at bar we should rather regard the seriousness of the protection sought to be secured to the people by the operation and enforcement of this constitutional inhibition. The words of a constitutional declaration such as this should not be narrowed down by finespun theories to a point where they exclude that which the framers intended to embrace. *246There can be no construction where there is nothing to construe.- Words should be given the scope and significance which they bore to the minds of those who incorporated them into the constitution. The intention of-the .framers of the law must be gathered from the words used, giving to them their contemporaneous acceptation. Where the framers of the constitution attempt, as in this instance, to establish a broad policy, forced or overstrict construction should not be resorted to, to the end that the wholesomeness of the policy to the body politic might be impaired or destroyed. The safer course, in my judgment, is to adopt that sense of the words employed or of the terms used that will insure, in the broadest scope, the fulfilment of the policy and aims sought to be established and accomplished.
In matters of this character, we may invade the realm of conjectural hypothesis and rob it of its most fairy like fancies. But, returning to the terra firma of things as they are, we are confronted with a rule set to govern human conduct, prescribed by a superior, and which an inferior is presumed to obey. We are confronted with the constitutional provision here involved, in the face of which we are asked the question: Can the members of the legislature create positions, tax the property of the state to pay the salaries, and then occupy the positions and draw the salaries themselves ? This is the question presented by the case.
If precedent were essential to lead the way in this case, it is only necessary to cite a few of the many cases that might be cited to support the opposite position from that taken by my learned associates. (People, ex rel., v. Nostrand, 46 N. Y. 375; Shelby v. Alcorn, 36 Miss. 289, 72 Am. Dec. 169; Rankin v. Jauman, 4 Idaho, 53, 36 Pac. 502; McCormick v. Thatcher, 8 Utah, 301, 30 Pac. 1091, 17 L. R. A. 243; People v. Hayes, 7 How. Prac. 248; Patton v. Board of Health, 127 Cal. 398, 59 Pac. 702, 78 Am. St. Rep. 66; Clark, et al., v. Stanley, et al., 66 N. C. 63, 8 Am. Rep. 488; People, ex rel. Throop, v. Langdon, 40 Mich. 673; Michael v. State, 163 Ala. 425, 50 South. 930; U. S. v. Hartwell, 6 Wall. 385, 18 L. Ed. 830; Enc. U. S. *247Sup. Ct. 956; Vaughn v. English, 8 Cal. 41; Schmitt v. Dooling, 145 Ky. 240, 140 S. W. 197, 36 L. R. A. n. s. 881, Ann. Cas. 1913b, 1078; U. S. v. Germaine, 99 U. S. 508, 25 L. Ed. 482; Talbot v. U. S., 10 Ct. Cl. 426; Louisville v. Wilson, 99 Ky. 598, 36 S. W. 944; State v. May, 106 Mo. 488, 17 S. W. 660; Collins v. N. Y., 3 Hun, 680.)
Aside from the expression set forth in these and numerous other decisions, wherein thought and consideration of the courts generally have been expressed by judicial utterances — aside from all this, the question is, in my judgment, not one of extreme intricacy, but is one of easy answer and solution. We have a policy and a purpose and an inhibitory declaration, created by an organic law, not narrow but broad, not rigid but flexible, not harsh but wholesome. No “kindly light” by way of judicial expression is required to lead the way, for there is, in fact, no “encircling gloom.” The words used in the section are so plain and self-explanatory, the policy established is so manifest, and the result is so wholesome, that these features in themselves light the way to comprehension and application.
The highest duty of the courts is to be an affirmative force in putting into execution the properly expressed will of the people, and to this end it is the ever-attendant duty of the courts to see to it that a properly declared rule, prescribed by a constitutional or legislative body, is not deprived of its lifeblood by some strained construction, to such an extent as to destroy its power of effective operation.
Pages might be written in an analytical discussion in furtherance of my views, briefly set forth herein. But, as the accomplishment of a dissenting opinion is usually nil, it will suffice to say that, in my judgment, the petitioner in this case holds a position which by constitutional provision he is prohibited from occupying and from which by constitutional provision he is prohibited from receiving the emoluments, and the petition, therefore, should be denied, not only for want of j urisdiction, but by reason of the. constitutional inhibition as well.